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Exhibit 10(jj)
FORM OF EXECUTIVE RETENTION EMPLOYMENT
AGREEMENT
Executive Retention Employment Agreement between FPL Group,
Inc., a Florida corporation (the "Company"), and________(the
"Executive"), dated as of ___________. The Board of Directors of
the Company (the "Board") has determined that it is in the best
interests of the Company and its shareholders to assure that the
Company and its affiliated companies will have the continued
dedication of the Executive, notwithstanding the possibility,
threat or occurrence of a Potential Change of Control or a Change
of Control (each as defined below) of the Company. The Board
believes it is imperative to diminish the inevitable distraction of
the Executive by virtue of the personal uncertainties and risks
created by the circumstances surrounding a Potential Change of
Control or a Change of Control and to encourage the Executive's
full attention and dedication to the Company and its affiliated
companies currently and in the event of any Potential Change of
Control or Change of Control (and, under certain circumstances, in
the event of the termination or abandonment of a Change of Control
transaction), and to provide the Executive with compensation and
benefits arrangements which ensure that the compensation and
benefits expectations of the Executive will be satisfied and which
are competitive with those of other corporations. Therefore, in
order to accomplish these objectives, the Board has caused the
Company to enter into this Executive Retention Employment Agreement
(the "Agreement").
Therefore, the Company and the Executive agree as follows:
1. Effective Date. The effective
date of this Agreement (the "Effective Date") shall be the date on
which (i) a Potential Change of Control occurs, (ii) the Board
approves a plan of complete liquidation or dissolution of the
Company, (iii) a Change of Control occurs pursuant to Section
2(a)(1) or (2) below or (iv) a definitive agreement is signed by
the Company which provides for a transaction that, if approved by
shareholders or consummated, as applicable, would result in a
Change of Control pursuant to Section 2(a)(3) or (4) below;
provided, however, that any of the foregoing which may have
occurred prior to the date hereof shall be disregarded. Anything in
this Agreement to the contrary notwithstanding, if, prior to the
Effective Date, the Executive's employment with the Company or its
affiliated companies was terminated by the Company or its
affiliated companies, or both, as applicable, other than for Cause
or Disability (each as defined below) or by the Executive for Good
Reason (as defined below) and the Executive can reasonably
demonstrate that such termination (or the event constituting Good
Reason) took place (a) at the request or direction of a third party
who took action that caused a Potential Change of Control or (b) in
contemplation of an event that would give rise to an Effective
Date, an Effective Date will be deemed to have occurred immediately
prior to the Date of Termination (as defined in Section 7(e)
below). As used in this Agreement, the term "affiliated companies"
shall include any corporation or other entity controlled by,
controlling or under common control with the Company.
2. Change of Control; Potential Change of
Control . For the purposes of this Agreement:
(a) A "Change of Control" shall mean the first (and
only the first) to occur of the following:
( 1) The acquisition by any individual, entity
or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"))
of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (x)
the then outstanding shares of common stock of the Company (the
"Outstanding Company Common Stock") or (y) the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that
the following acquisitions (collectively, the "Excluded
Acquisitions") shall not constitute a Change of Control (it being
understood that shares acquired in an Excluded Acquisition may
nevertheless be considered in determining whether any subsequent
acquisition by such individual, entity or group (other than an
Excluded Acquisition) constitutes a Change of Control): (i) any
acquisition directly from the Company or any of its subsidiaries;
(ii) any acquisition by the Company or any or its subsidiaries;
(iii) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any of its
subsidiaries; (iv) any acquisition by an underwriter temporarily
holding Company securities pursuant to an offering of such
securities; (v) any acquisition in connection with which, pursuant
to Rule 13d-1 promulgated pursuant to the Exchange Act, the
individual, entity or group is permitted to, and actually does,
report its beneficial ownership on Schedule 13G (or any successor
Schedule); provided that, if any such individual, entity or group
subsequently becomes required to or does report its beneficial
ownership on Schedule 13D (or any successor Schedule), then, for
purposes of this paragraph, such individual, entity or group shall
be deemed to have first acquired, on the first date on which such
individual, entity or group becomes required to or does so report,
beneficial ownership of all of the Outstanding Company Common Stock
and/or Outstanding Company Voting Securities beneficially owned by
it on such date; or (vi) any acquisition in connection with a
Business Combination (as hereinafter defined) which, pursuant to
subparagraph (3) below, does not constitute a Change of Control;
or
(2) Individuals who, as of the date hereof,
constitute the Board (the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of either an actual or
threatened election contest with respect to the election or removal
of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of an individual, entity or group other
than the Board; or
(3) Consummation of a reorganization, merger,
consolidation or other business combination (any of the foregoing,
a "Business Combination") of the Company or any direct or indirect
subsidiary of the Company with any other corporation, in any case
with respect to which:
(i) the Outstanding Company Voting Securities
outstanding immediately prior to such Business Combination do not,
immediately following such Business Combination, continue to
represent (either by remaining outstanding or being converted into
voting securities of the resulting or surviving entity or any
ultimate parent thereof) more than 55% of the outstanding common
stock and of the then outstanding voting securities entitled to
vote generally in the election of directors of the resulting or
surviving entity (or any ultimate parent thereof); or
(ii) less than a majority of the members of the board
of directors of the resulting or surviving entity (or any ultimate
parent thereof) in such Business Combination (the "New Board")
consists of individuals ("Continuing Directors") who were members
of the Incumbent Board (as defined in subparagraph (2) above)
immediately prior to consummation of such Business Combination
(excluding from Continuing Directors for this purpose, however, any
individual whose election or appointment to the Board was at the
request, directly or indirectly, of the entity which entered into
the definitive agreement with the Company or any subsidiary of the
Company providing for such Business Combination); or
(4) Consummation of a sale or other disposition of
all or substantially all of the assets of the Company, other than
to a corporation with respect to which, following such sale or
other disposition, more than 55% of, respectively, the then
outstanding shares of common stock of such corporation and the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entities who were
the beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Securities immediately
prior to such sale or other disposition in substantially the same
proportion as their ownership, immediately prior to such sale or
other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities as the case may be; or (ii)
shareholder approval of a complete liquidation or dissolution of
the Company.
The term "the sale or disposition by the Company of all or
substantially all of the assets of the Company" shall mean a sale
or other disposition transaction or series of related transactions
involving assets of the Company or of any direct or indirect
subsidiary of the Company (including the stock of any direct or
indirect subsidiary of the Company) in which the value of the
assets or stock being sold or otherwise disposed of (as measured by
the purchase price being paid therefor or by such other method as
the Board determines is appropriate in a case where there is no
readily ascertainable purchase price) constitutes more than
two-thirds of the fair market value of the Company (as hereinafter
defined). The "fair market value of the Company" shall be the
aggregate market value of the then Outstanding Company Common Stock
(on a fully diluted basis) plus the aggregate market value of the
Company's other outstanding equity securities. The aggregate market
value of the shares of Outstanding Company Common Stock shall be
determined by multiplying the number of shares of Outstanding
Company Common Stock (on a fully diluted basis) outstanding on the
date of the execution and delivery of a definitive agreement with
respect to the transaction or series of related transactions (the
"Transaction Date") by the average closing price of the shares of
Outstanding Company Common Stock for the ten trading days
immediately preceding the Transaction Date. The aggregate market
value of any other equity securities of the Company shall be
determined in a manner similar to that prescribed in the
immediately preceding sentence for determining the aggregate market
value of the shares of Outstanding Company Common Stock or by such
other method as the Board shall determine is appropriate.
(b) A "Potential Change of Control" shall be deemed
to have occurred if an event set forth in either the following
subparagraphs shall have occurred:
(1) the Company or any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) publicly announces or otherwise communicates to the Board in
writing an intention to take or to consider taking actions (
e.g. , a "bear hug" letter, an unsolicited offer or the
commencement of a proxy contest) which, if consummated or approved
by shareholders, as applicable, would constitute a Change of
Control; or
(2) any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
directly or indirectly, acquires beneficial ownership of 15% or
more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities; provided, however, that Excluded Acquisitions
shall not constitute a Potential Change of Control.
(3) Employment Period .
(a) The Company hereby agrees to continue the
Executive in its or its affiliated companies' employ, or both, as
the case may be, and the Executive hereby agrees to remain in the
employ of the Company, or its affiliated companies, or both, as the
case may be, for a period commencing on the Effective Date and
ending on the third anniversary of such date (such period or, if
shorter, the period from the Effective Date to the Date of
Termination, is hereinafter referred to as the "Employment
Period").
(b) Anything in this Agreement to the contrary
notwithstanding, (x) if an Effective Date occurs (other than as a
result of a Change of Control under Section 2(a)(1) or (2) above)
and the Board adopts a resolution to the effect that the event or
circumstance giving rise to the Effective Date no longer exists
(including by reason of the termination or abandonment of the
transaction contemplated by the definitive agreement referred to in
clause (iv) of Section 1 hereof), the Employment Period shall
terminate on the date the Board adopts such resolution, but this
Agreement shall otherwise remain in effect, and (y) if a Change of
Control occurs pursuant to Section 2(a)(3) or (4) above during the
Employment Period, the Employment Period shall immediately extend
to and end on the third anniversary of the date of such Change of
Control (or, if earlier, to the Date of Termination) and a new
Effective Date will be deemed to have occurred on the date of such
Change of Control.
4. Position and Duties . During the
Employment Period, the Executive's status, offices, titles, and
reporting requirements with the Company or its affiliated companies
or both, as the case may be, shall be commensurate with those in
effect during the 90-day period immediately preceding the Effective
Date. The duties and responsibilities assigned to the Executive may
be increased, decreased or otherwise changed during the Employment
Period, provided that the duties and responsibilities assigned to
the Executive at any given time are not materially inconsistent
with the Executive's status, offices, titles, and reporting
requirements as in effect during the 90-day period immediately
preceding the Effective Date. The Executive's services shall be
performed at the location where the Executive was employed
immediately preceding the Effective Date or any location less than
20 miles from such location, although the Executive understands and
agrees that he may be required to travel from time to time for
business purposes.
During the Employment Period, and excluding any periods of
vacation and sick leave to which the Executive is entitled, the
Executive agrees to devote substantially all of his time and
attention during normal business hours to the business and affairs
of the Company and its affiliated companies and to use his
reasonable best efforts to perform faithfully and efficiently the
duties and responsibilities assigned to him hereunder. During the
Employment Period it shall not be a violation of this Agreement for
the Executive to serve on corporate, civic or charitable boards or
committees, deliver lectures, fulfill speaking engagements or teach
at educational institutions and devote reasonable amounts of time
to the management of his and his family's personal investments and
affairs, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an
employee of the Company or its affiliated companies in accordance
with this Agreement. It is expressly understood and agreed that to
the extent that any such activities have been conducted by the
Executive prior to the Effective Date, the reinstatement or
continued conduct of such activities (or the reinstatement or
conduct of activities similar in nature and scope thereto)
subsequent to the Effective Date shall not thereafter be deemed to
interfere with the performance of the Executive's responsibilities
to the Company and its affiliated companies.
5. Compensation . During
the Employment Period, the Executive shall be compensated as
follows:
(a) Annual Base Salary . The
Executive shall be paid an annual base salary ("Annual Base
Salary"), in equal biweekly installments, at least equal to the
annual rate of base salary being paid to the Executive by the
Company and its affiliated companies as of the Effective Date. The
Annual Base Salary shall be reviewed at least annually and shall be
increased substantially consistent with increases in base salary
generally awarded to other peer executives of the Company and its
affiliated companies. Such increases shall in no event be less than
the increases in the U.S. Department of Labor Consumer Price Index
- U.S. City Average Index. Any increase in Annual Base Salary shall
not serve to limit or reduce any other obligation to the Executive
under this Agreement. Annual Base Salary shall not be reduced after
any such increase and the term "Annual Base Salary" as utilized in
this Agreement shall refer to Annual Base Salary as so
increased.
(b) Annual Bonus . In addition to
Annual Base Salary, the Executive shall be awarded, for each fiscal
year ending during the Employment Period, an annual cash bonus (the
"Annual Bonus") equal to a percentage of his Annual Base Salary.
Such percentage shall be substantially consistent with the targeted
percentages generally awarded to other peer executives of the
Company and its affiliates, but at least equal to the higher of (i)
the percentage obtained by dividing his targeted annual bonus for
the then current fiscal year by his then Annual Base Salary or (ii)
the average percentage of his annual base salary (as in effect for
the applicable years) that was paid or payable, including by reason
of any deferral, to the Executive by the Company and its affiliated
companies as an annual bonus (however described, including as
annual incentive compensation) for each of the three fiscal years
immediately preceding the fiscal year in which the Effective Date
occurs (or, if higher, for each of the three fiscal years
immediately preceding the fiscal year in which a Change of Control
occurs, if a Change of Control occurs following the Effective
Date). For the purposes of any calculation required to be made
under clause (ii) of the preceding sentence, an annual bonus shall
be annualized for any fiscal year consisting of less than twelve
full months or with respect to which the Executive was employed for
less than the full twelve months, and, if the Executive has not
been employed for the full duration of the three fiscal years
immediately preceding the year in which the Effective Date occurs,
the average shall be calculated over the duration of the
Executive's employment in such period. Each such Annual Bonus shall
be paid no later than the end of the second month of the fiscal
year next following the fiscal year for which the Annual Bonus is
awarded, unless the Executive otherwise elects to defer the receipt
of such Annual Bonus.
(c) Long Term Incentive Compensation
. During the Employment Period, the Executive shall be
entitled to participate in all incentive compensation plans,
practices, policies, and programs applicable generally to other
peer executives of the Company and its affiliated companies, but in
no event shall such plans, practices, policies, and programs
provide the Executive with incentive opportunities and potential
benefits, both as to amount and percentage of compensation, less
favorable, in the aggregate, than those provided by the Company and
its affiliated companies for the Executive under the FPL Group Long
Term Incentive Plan (including, without limitation, performance
share awards, shareholder value awards, stock option grants and
restricted stock awards) as in effect at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, those provided generally at any time
after the Effective Date to other peer executives of the Company
and its affiliated companies.
(d) Savings and Retirement Plans
. During the Employment Period, the Executive shall be
entitled to participate in all savings and retirement plans,
practices, policies, and programs applicable generally to other
peer executives of the Company and its affiliated companies, but in
no event shall such plans, practices, policies, and programs
provide the Executive with savings opportunities and retirement
benefit opportunities, in each case, less favorable, in the
aggregate, than the most favorable of those provided by the Company
and its affiliated companies for the Executive under such plans,
practices, policies, and programs as in effect at any time during
the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive, those provided generally at any
time after the Effective Date to other peer executives of the
Company and its affiliated companies.
In addition, during the Employment Period the Executive shall be
entitled under this Agreement to the supplemental retirement
benefit described in Annex A attached hereto and made a part hereof
by this reference. The payment and vesting of such supplemental
retirement benefit shall be determined in accordance with Section 8
of this Agreement.
(e) Benefit Plans . During the Employment
Period, the Executive and/or the Executive's family, as the case
may be, shall be eligible for participation in and shall receive
all benefits under welfare benefit plans, practices, policies, and
programs provided by the Company and its affiliated companies
(including, without limitation, medical, executive medical, annual
executive physical, prescription, dental, vision, short-term
disability, long-term disability, executive long-term disability,
salary continuance, employee life, group life, benefits pursuant to
split dollar arrangements, accidental death and dismemberment, and
travel accident insurance plans and programs) to the extent
applicable generally to other peer executives of the Company and
its affiliated companies, but in no event shall such plans,
practices, policies, and programs provide the Executive with
benefits which are less favorable, in the aggregate, than the most
favorable of such plans, practices, policies, and programs in
effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, those provided generally at any time after the
Effective Date to other peer executives of the Company and its
affiliated companies.
(f) Expenses . During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies,
practices, and procedures of the Company and its affiliated
companies in effect for the Executive at any time during the 90-day
period immediately preceding the Effective Date or, if more
favorable to the Executive, as in effect generally at any time
thereafter with respect to other peer executives of the Company and
its affiliated companies.
(g) Fringe Benefits . During the
Employment Period, the Executive shall be entitled to fringe
benefits, including but not limited to those described in Section
8(a)(5), in accordance with the most favorable plans, practices,
programs, and policies of the Company and its affiliated companies
in effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
(h) Office and Support Staff
. During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided generally at any time thereafter with
respect to other peer executives of the Company and its affiliated
companies.
(i) Vacation . During the Employment Period,
the Executive shall be entitled to paid vacation in accordance with
the most favorable plans, policies, programs, and practices of the
Company and its affiliated companies as in effect for the Executive
at any time during the 90-day period immediately preceding the
Effective Date or, if more favorable to the Executive, as in effect
generally at any time thereafter with respect to other peer
incentives of the Company and its affiliated companies.
6. Change of Control .
(a) Benefits Upon Change of Control . If, as
of the date of a Change of Control which occurs during the
Employment Period (including on the Effective Date), the Executive
is employed by the Company or one of its affiliated companies, then
as of such date:
(1) 50% of each outstanding performance stock-based
award granted to the Executive shall become fully vested and earned
at a deemed achievement level equal to the higher of (x) the
targeted level of performance for such award or (y) the average
level (expressed as a percentage of target) of achievement in
respect of similar performance stock-based awards which matured
over the three fiscal years immediately preceding the year in which
the Change of Control occurred; payment of each such vested award
shall be made to the Executive, in the form described below, as
soon as practicable following such Change of Control; and the
remainder of each such award shall remain outstanding (on a
converted basis, if applicable) and shall remain subject to the
terms and conditions of the plan under which such award was
granted, as well as the terms and conditions of this Agreement;
and
(2) all other outstanding stock-based awards granted
to the Executive shall be fully vested and earned; and
(3) any outstanding option, stock appreciation right,
and other outstanding award in the nature of a right that may be
exercised that was granted to the Executive and which was not
previously exercisable and vested shall become fully exercisable
and vested; and
(4) the restrictions, deferral limitations, and
forfeiture conditions applicable to any outstanding award granted
to the Executive under an incentive compensation plan, practice,
policy or program shall lapse and such award shall be deemed fully
vested.
If as a result of the Change of Control, the Outstanding Company
Common Stock is exchanged for or converted into a different form of
equity security and/or the right to receive other property
(including cash), payment in respect of the underlying awards
described in subparagraphs (1), (2) and, with respect to
stock-based awards, (4) hereof shall, to the maximum extent
practicable, be made in the same form. If a Change of Control
occurs and Company shareholders do not, as a group, receive
consideration in connection with such Change of Control, then
payment in respect of awards described in subparagraphs (1),(2)
and, with respect to stock-based awards, (4) hereof shall be made
in cash based on the average closing price of the shares of
Outstanding Company Common Stock for the 20 trading days
immediately preceding the date of the Change of Control.
(b) Benefits Upon First Anniversary of Change of
Control . If the Executive has remained employed by the Company
or one of its affiliated companies from the date of a Change of
Control which occurs during the Employment Period (including on the
Effective Date) to the date of the first anniversary of such Change
of Control, the performance stock-based awards outstanding
immediately prior to such Change of Control that did not become
vested and earned at the time of such Change of Control pursuant to
Section 6(a)(1) shall become vested and earned as of such first
anniversary date and payment in respect of such awards shall be
made as soon as practicable following such date. The deemed level
of achievement with respect to such awards, as well as the form of
payment thereof, shall be as described in paragraph (a) above.
7. Termination of Employment .
(a) Disability . If the Company determines in
good faith that the Disability of the Executive has occurred during
the Employment Period (pursuant to the definition of Disability set
forth below), it may give to the Executive written notice in
accordance with Section 7(d) of this Agreement of its intention to
terminate the Executive's employment. In such event, the
Executive's employment with the Company shall terminate effective
on the 30th day after receipt of such notice by the Executive (the
"Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to
perform his duties in accordance with Section 4. For purposes of
this Agreement, "Disability" shall mean the absence of the
Executive from the Executive's duties with the Company for 180
consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative
(such agreement as to acceptability not to be withheld
unreasonably).
(b) Cause . The Company may terminate the
Executive's employment during the Employment Period for Cause. For
purposes of this Agreement, "Cause" shall mean (i) repeated
violations by the Executive of the Executive's obligations under
Section 4 of this Agreement (other than as a result of incapacity
due to physical or mental illness) which are demonstrably willful
and deliberate on the Executive's part, which are committed in bad
faith or without reasonable belief that such violations are in the
best interests of the Company and which are not remedied in a
reasonable period of time after receipt of written notice from the
Company specifying such violations or (ii) the conviction of the
Executive of a felony involving an act of dishonesty intended to
result in substantial personal enrichment at the expense of the
Company or its affiliated companies.
(c) Good Reason . The Executive's employment
may be terminated during the Employment Period by the Executive for
Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(1) any failure by the Company to comply with the
provisions of Section 4 of this Agreement, including without
limitation, the assignment to the Executive of any duties and
responsibilities that are materially inconsistent with the
Executive's status, offices, titles, and reporting requirements as
in effect during the 90-day period immediately preceding the
Effective Date, but excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(2) any failure by the Company to comply with any of
the provisions of Section 5 or 6 of this Agreement, other than
isolated, insubstantial and inadvertent failure not occurring in
bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Executive;
(3) the Company's requiring the Executive to be based
at any office or location other than that described in Section 4
hereof;
(4) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by
this Agreement; or
(5) any failure by the Company to comply with and
satisfy Section 7(d) of this Agreement, provided that such
successor has received at least ten days prior written notice from
the Company or the Executive of the requirements of Section 7(d) of
the Agreement.
For purposes of this Section 7(c), any good faith determination
of "Good Reason" made by the Executive shall be conclusive.
(d) Notice of Termination . Any termination
by the Company for Cause, or by the Executive for Good Reason,
shall be communicated by Notice of Termination to the other party
hereto given in accordance with this Section 7(d) and Section 15(b)
of this Agreement. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii)
to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the
Executive's employment under the provision so indicated, and (iii)
if the Date of Termination (as defined below) is other than the
date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen days after the giving of
such notice). The failure by the Executive or the Company to set
forth in the Notice of Termination any fact or circumstances which
contributes to a showing of Good Reason or Cause shall not waive
any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance
in enforcing the Executive's or the Company's rights hereunder.
(e) Date of Termination . "Date of
Termination" means (i) if the Executive's employment is terminated
by the Company for Cause, or by the Executive for Good Reason, the
date of receipt of the Notice of Termination or any later date
specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause or
Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination, and (iii) if
the Executive's employment is terminated by reason of Disability,
the Date of Termination shall be the Disability Effective Date.
8. Obligations of the Company upon
Termination .
(a) Following a Change of Control: Good Reason;
Other Than for Cause or Disability . If following a Change of
Control and during the Employment Period, the Company terminates
the Executive's employment other than for Cause or Disability or
the Executive terminates employment for Good Reason, then:
(1) the Company shall pay to the Executive in a lump
sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts
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